Corpus Linguistics

27 Pages·2017·0.29 MB·English

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Volume 116 Issue 2
2017
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John D. Ramer
University of Michigan Law School
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John D. Ramer, Corpus Linguistics: Misfire or More Ammo for the Ordinary - Meaning Canon?, 116 MICH.
L. REV. 303 (2017).
Available at: https://repository.law.umich.edu/mlr/vol116/iss2/3
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NOTE
Corpus Linguistics: Misfire or More Ammo for the
Ordinary-Meaning Canon?
John D. Ramer*
Scholars and judges have heralded corpus linguistics—the study of language
through collections of spoken or written texts—as a novel tool for statutory
interpretation that will help provide an answer in the occasionally ambiguous
search for “ordinary meaning” using dictionaries. In the spring of 2016, the
Michigan Supreme Court became the first to use corpus linguistics in a major-
ity opinion. The dissent also used it, however, and the two opinions reached
different conclusions. In the first true test for corpus linguistics, the answer
seemed to be just as ambiguous as before.
This result calls into question the utility of corpus linguistics. If the Michigan
Supreme Court could reach opposite conclusions about the ordinary meaning
of a word when both opinions used the same database, can one really consider
corpus linguistics an effective aid to statutory interpretation? This Note first
argues that the Michigan Supreme Court’s majority opinion conducted a
flawed search of the database and that the dissent’s contrary conclusion was
correct.
In addition, this Note contends that transparency—the greatest strength of
corpus linguistics—outweighs the risk that judges may fail to use a corpus-
linguistics database accurately because that transparency permits advocates,
other judges, and legal scholars to review the court’s analysis, aiding appellate
review. Lastly, this Note includes recommended steps to guide the use of a
corpus-linguistics database in the search for ordinary meaning.
Table of Contents
Introduction..................................................... 304
I. The Background of Corpus Linguistics in the Law ......309
A. The Legacy of Corpus Linguistics in Statutory Interpretation 309
B. The Michigan Supreme Court’s Use of the COCA..........311
1. Factual Background.................................311
2. The Majority Opinion’s Use of the COCA ...........312
3. The Dissent’s Use of the COCA .....................314
II. Reviewing the Michigan Supreme Court’s COCA
Analysis ...................................................316
* J.D. Candidate, December 2017, University of Michigan Law School. I would first like
to thank my wife Whitney for her love, patience, and encouragement during the experience
that is law school. I would also like to thank my parents, James and Jane, and my sister Libby
for their unwavering support. Finally, I want to thank everyone at the Michigan Law Review
for their excellent editing.
303
304 Michigan Law Review [Vol.116:303
A. Search Methods .........................................316
B. Contextual Review.......................................317
III. The COCA After Harris ..................................321
A. Criticisms of the COCA..................................321
B. Responses to the Criticism................................321
1. Experts.............................................322
2. Sua Sponte Use.....................................323
C. The Value of Transparency ...............................326
D. Steps to Use the COCA ..................................326
Conclusion ....................................................... 328
Introduction
The judiciary says what a statute means1 in order “to give effect to the
law” a legislature enacted.2 To this end, courts “read the statute according to
its text.”3 If the legislature did not define a particular word, courts generally
look to the ordinary meaning of the word used4 at the time the legislature
adopted the statute.5 This interpretive method—commonly called the “ordi-
nary-meaning canon”6—assumes that a word’s ordinary meaning most “ac-
curately expresses the legislative purpose.”7
This inquiry sounds simple enough: courts merely ask how a word is (or
was) ordinarily understood. As one professor put it, the ordinary meaning is
“that which an ordinary speaker of the English language—twin sibling to the
common law’s reasonable person—would draw from the statutory text.”8
But putting the theory into practice can be difficult.
1. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994) (“A judicial construc-
tion of a statute is an authoritative statement of what the statute meant before as well as after
the decision of the case giving rise to that construction.”); Bank of Hamilton v. Lessee of
Dudley, 27 U.S. (2 Pet.) 492, 524 (1829) (“The judicial department of every government is the
rightful expositor of its laws . . . .”).
2. Lewis v. City of Chicago, 560 U.S. 205, 217 (2010).
3. Hui v. Castaneda, 559 U.S. 799, 812 (2010); see Levin v. United States, 133 S. Ct.
1224, 1231 (2013).
4. E.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in
a statute are undefined, we give them their ordinary meaning.”).
5. See, e.g., Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2165 & n.2 (2015)
(using dictionaries from 1933 and 1934 to determine the meaning of “services” because Con-
gress added the relevant language to the federal bankruptcy law in 1934); Cuomo v. Clearing
House Ass’n, 557 U.S. 519, 526 (2009) (determining the meaning of “visitation” in 1864, the
year Congress enacted the National Bank Act). Contra William N. Eskridge, Jr., Dynamic Stat-
utory Interpretation, 135 U. Pa. L. Rev. 1479, 1479 (1987) (“Statutes, however, should—like
the Constitution and the common law—be interpreted ‘dynamically,’ that is, in light of their
present societal, political, and legal context.”).
6. E.g.,Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 69 (2012).
7. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 175 (2009) (quoting Engine Mfrs. Ass’n v.
S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)).
8. William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509,
1511 (1998) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts
November2017] Corpus Linguistics: Misfire or More Ammo? 305
In the last few decades, lawyers and judges have increasingly used dic-
tionaries to determine a word’s ordinary meaning.9 For example, the ordi-
nary-meaning canon was on display in Muscarello v. United States,10 when
the U.S. Supreme Court consolidated two criminal cases.11 In one case,
Frank Muscarello was arrested after driving to a drug deal with a handgun
locked in his truck’s glove compartment.12 In the other case, which had sim-
ilar facts, the defendants had stored their guns in the car’s trunk.13 In both
lower court opinions, the courts of appeals found that the defendants had
violated 18 U.S.C. § 924(c)(1) because they “‘carrie[d]’ the guns during and
in relation to a drug trafficking offense.”14 The issue was whether the ordi-
nary meaning of the phrase “carries a firearm” included storing handguns in
a vehicle’s locked compartment.15
The Supreme Court looked to a number of sources in its attempt to
discern the phrase’s ordinary meaning. First, the Court looked to the Oxford
English Dictionary.16 Then it consulted Webster’s Third New International
Dictionary, the Random House Dictionary of the English Language Una-
bridged, the Barnhart Dictionary of Etymology, the Oxford Dictionary of En-
glish Etymology, the King James Bible, Robinson Crusoe, and Moby Dick.17
The Court also cited articles from the New York Times, the Boston Globe, the
Colorado Springs Gazette Telegraph, and the Arkansas Gazette.18 After review-
ing all these sources (and others), the Court determined that the ordinary
meaning of “carrying a firearm” included driving a car with a gun in it.19
The dissent also conducted an extensive search for the word’s ordinary
meaning by consulting a legal dictionary, several translations of the Bible,
poems, and scripts from the film The Magnificent Seven and the television
and the Law (1997)); see also Oliver Wendell Holmes, The Theory of Legal Interpretation, 12
Harv. L. Rev. 417, 417–18 (1899) (“Thereupon we ask, not what [the author] meant, but
what those words would mean in the mouth of a normal speaker of English, using them in the
circumstances in which they were used . . . .”).
9. James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for
Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 494–95 (2013)
(discussing the Supreme Court’s increasing use of dictionaries starting in the Rehnquist era);
e.g., Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566–67 (2012) (describing the issue
presented as determining the ordinary meaning of “interpreter” and then consulting ten dif-
ferent dictionaries).
10. 524 U.S. 125 (1998).
11. Muscarello, 524 U.S. at 127.
12. Id.
13. Id.
14. Id. (alteration in original) (first quoting United States v. Muscarello, 106 F.3d 636
(5th Cir. 1997), and then quoting United States v. Cleveland, 106 F.3d 1056 (1st Cir. 1997)).
15. Id. at 127–28.
16. Id. at 128.
17. Id. at 128–29.
18. Id. at 129–30.
19. Id. at 131.
306 Michigan Law Review [Vol.116:303
showsM*A*S*H and Sesame Street.20 The ordinary-meaning analysis of both
opinions seemed somewhat haphazard.
To bring more statistical analysis to the ordinary-meaning canon,
then–law student Stephen Mouritsen,21 who held a master of arts in linguis-
tics with an emphasis in corpus linguistics,22 thought of a better way. He
proposed using corpus linguistics23—the study of language through collec-
tions of spoken or written texts, called corpora.24 These collections typically
take the form of digitized databases that are accessible through an online
interface.25 A user can search the corpus-linguistics database for a particular
word or phrase to study how that word or phrase has actually been used in
the texts collected in the corpus.26
One corpus-linguistics database is the Corpus of Contemporary Ameri-
can English (“COCA”), which “is the largest freely-available corpus of En-
glish.”27 The COCA contains more than 520 million words and is equally
divided among transcriptions of spoken language,28 fiction publications,29
20. Stephen C. Mouritsen, Comment, The Dictionary Is Not a Fortress: Definitional Falla-
cies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1916–17 (sum-
marizing the dissent’s sources).
21. Mouritsen is now an associate at Cravath, Swaine, & Moore LLP in New York, an
adjunct professor at Brigham Young University, and a former law clerk to the Honorable
Justice Thomas Rex Lee of the Utah Supreme Court. Stephen Mouritsen Faculty Biography,
BYU Law, http://www.law2.byu.edu/faculty/profile_2016.php?id=234 [https://perma.cc/664H-
QFCC].
22. Mouritsen, supra note 20, at 1970 n.*.
23. Id. at 1951–70.
24. Martin Weisser,Practical Corpus Linguistics: An Introduction to Corpus-
Based Language Analysis 13 (2016).
25. See id.
26. SeeHans Lindquist,Corpus Linguistics and the Description of English 1, 5
(2009) (“At the centre of [corpus linguistics] is that the rules of language are usage-based . . . .
[And] if you are interested in the workings of a particular language, like English, it is a good
idea to study English in use.”).
27. Corpus Contemp. Am. Eng., http://corpus.byu.edu/coca/ [https://perma.cc/GT9J-
9NNR].
28. What Kind of Texts Are in the Corpus?,Corpus Contemp. Am. Eng., https://corpus.
byu.edu/coca/help/texts.asp [https://perma.cc/CV5E-2DND] (“Transcripts of unscripted con-
versation from more than 150 different TV and radio programs (examples: All Things Consid-
ered (NPR), Newshour (PBS), Good Morning America (ABC), Today Show (NBC), 60 Minutes
(CBS),Hannity and Colmes (Fox), Jerry Springer, etc[.]).”).
29. Id. (“Short stories and plays from literary magazines, children’s magazines, popular
magazines, first chapters of first edition books 1990–present, and movie scripts.”).
November2017] Corpus Linguistics: Misfire or More Ammo? 307
popular magazines,30 newspapers,31 and academic texts.32 Professor Mark
Davies, a corpus linguist, developed the COCA through his academic work
at Brigham Young University.33 The COCA is a “tagged corpus,”34 which
means that each word is labeled in reference to its particular part of
speech—for example, a noun or a verb.35 The COCA does not, however,
function like a search engine. The user cannot simply ask what the word
means. Instead, the database allows a user to review many instances of the
use of a word or phrase in the database’s collected texts.36
Mouritsen argued that the COCA’s utility in determining ordinary
meaning exceeds that of a dictionary37 because dictionaries provide a range
ofpermissible meanings only38: “A dictionary, it is vital to observe, never says
what meaning a word must bear in a particular context. Nor does it ever
purport to say this.”39 Mouritsen described a hypothetical, seemingly
modeled after Muscarello, where Judge A and Judge B disagree about the
ordinary meaning of a word, and both judges find support in different dic-
tionaries.40 As Mouritsen explained, assuming no additional evidence, the
30. Id. (“Nearly 100 different magazines, with a good mix (overall, and by year) between
specific domains (news, health, home and gardening, women, financial, religion, sports, etc.).
A few examples are Time, Men’s Health, Good Housekeeping, Cosmopolitan, Fortune, Christian
Century, Sports Illustrated, etc.”).
31. Id. (“Ten newspapers from across the US, including: USA Today, New York Times,
Atlanta Journal Constitution, San Francisco Chronicle, etc. In most cases, there is a good mix
between different sections of the newspaper, such as local news, opinion, sports, financial,
etc.”).
32. Id. (“Nearly 100 different peer-reviewed journals. These were selected to cover the
entire range of the Library of Congress classification system (e.g. a certain percentage from B
(philosophy, psychology, religion), D (world history), K (education), T (technology), etc.),
both overall and by number of words per year[.]”).
33. Davies created “[t]he underlying corpus architecture and web interface . . . . In most
cases, he also designed, collected, edited, and annotated the corpora as well,” but he also
received help from his BYU students to scan some of the sources. Frequently Asked Questions,
BYU Corpora, http://corpus.byu.edu/faq.asp#x1 [https://perma.cc/N37M-ZC7X].
34. This is also called a “lemmatized” corpus. See State v. Rasabout, 356 P.3d 1258, 1281
n.28 (Utah 2015) (Lee, J., concurring).
35. Stephen C. Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an
Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech. L. Rev. 156, 192 (2012).
36. See Susan Hunston, Corpora in Applied Linguistics 3 (2002) (“Strictly speak-
ing, a corpus by itself can do nothing at all, being nothing other than a store of used language.
Corpus access software, however, can rearrange that store so that observations of various kinds
can be made.”).
37. Mouritsen, supra note 20, at 1956–57.
38. Id. at 1923 (“The implicit claim made when a given definition is included in a dic-
tionary is not that a particular meaning is correct or even common, but that its use, in a given
context, is verifiable.”); see also Rasabout, 356 P.3d at 1273 (Lee, J., concurring) (“[T]he dic-
tionary generally cannot provide the basis for preferring one of its definitions over another.”).
39. Mouritsen, supra note 20, at 1923 (emphasis omitted) (quoting Henry M. Hart, Jr.
& Albert M. Sacks, The Legal Process: Basic Problems in the Making and Applica-
tion of Law 1190 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994)).
40. Id. at 1969.
308 Michigan Law Review [Vol.116:303
dispute is intractable because it is based on the judges’ differing intuitions
about the word’s ordinary meaning.41 In contrast, if Judge A uses a corpus-
based analysis, then Judge B “will have numerous ‘overt’ bases” to challenge
JudgeA’s corpus analysis.42 In the first scenario, the disagreement is a meta-
physical debate; in the second scenario, the disagreement is an empirical
debate.43 This empiricism is the chief benefit of using a corpus-linguistics
database as a supplement to a dictionary. The corpus is “essentially tell[ing]
us what a language is like, and the main argument in favour of using a
corpus is that it is a more reliable guide to language use than native speaker
intuition.”44
Since the publication of Mouritsen’s note,45 lawyers and judges have oc-
casionally used corpus linguistics to aid in statutory interpretation.46 Most
recently, the Michigan Supreme Court became the first state supreme court
to do so.47 Interestingly, the dissent also used it but disagreed with the ma-
jority’s corpus analysis.48 Some judges are driving forward into the frontier
with corpus linguistics.49 Some judges think the databases are too compli-
cated to use and should only be considered when the parties cite to a
database in their brief.50 Others think judicial recognition of corpus linguis-
tics will force parties to hire linguistics experts, which will unduly add to the
costs of litigation.51
This Note analyzes the judicial use of corpus linguistics in statutory in-
terpretation through the lens of the Michigan Supreme Court’s decision in
People v. Harris.52 Part I explains the evolution of using corpus linguistics—
specifically the COCA—in statutory interpretation and examines the Harris
opinions’ corpus-linguistics analyses. Part II contends that neither opinion
in Harris conducted a complete analysis of the COCA but that the dissent
reached the correct result. And Part III recites some common criticism of
the COCA, addresses this criticism, and briefly suggests practical steps for
using the COCA.
41. Id.
42. Id. at 1969–70 (noting that Judge B could attack the corpus selection, the construc-
tion of the corpus, or the analysis of the corpus).
43. Id. at 1970.
44. Hunston,supra note 36, at 20.
45. See Mouritsen, supra note 20.
46. See infra Sections I.A–I.B.
47. Gordon Smith, Michigan Supreme Court Embraces Corpus Linguistics, Conglomer-
ate (June 28, 2016), http://www.theconglomerate.org/2016/06/michigan-supreme-court-em
braces-corpus-linguistics.html [https://perma.cc/5SUK-DMAD].
48. See People v. Harris, 885 N.W.2d 832, 850 n.14 (Mich. 2016) (Markman, J., concur-
ring in part and dissenting in part).
49. See, e.g., State v. Rasabout, 356 P.3d 1258, 1271–90 (Utah 2015) (Lee, J., concurring).
50. Id. at 1269–71 (Durrant, C.J., concurring).
51. Id. at 1265 (majority opinion) (stating that the use of corpus linguistics could impose
“such a significant financial burden on so many of the litigants coming through the doors of
our courts [that it] would be tantamount to locking those doors for all but the most affluent”).
52. 885 N.W.2d 832.
November2017] Corpus Linguistics: Misfire or More Ammo? 309
I. The Background of Corpus Linguistics in the Law
Part I traces the history of corpus linguistics in statutory interpretation.
Section I.A discusses the emergence of corpus linguistics in scholarship, ad-
vocacy, and judicial decisionmaking. Section I.B examines the Michigan Su-
preme Court’s use of corpus linguistics in People v. Harris by detailing the
different types of searches that both the majority and the dissent used in
their respective analyses.
A. The Legacy of Corpus Linguistics in Statutory Interpretation
Before the COCA appeared in any judicial opinions, it debuted in an
amicus brief before the U.S. Supreme Court. In FCC v. AT&T Inc.,53 the
Court had to determine whether corporations had “personal privacy” or if
the phrase applied only to humans.54 The Project on Government Oversight
(“POGO”) submitted an amicus brief that used multiple corpora to deter-
mine the ordinary meaning of “personal privacy.”55 Specifically, POGO used
tagged corpora,56 including the COCA, which allowed POGO to search for
nouns that the adjective “personal” most often modified.57 POGO included
the corpora’s data in its brief.58 At oral argument, Justice Ginsburg asked
AT&T’s attorney to respond specifically to POGO’s amicus brief.59 Corpus
linguistics had arrived.
In 2015, Justice Lee of the Utah Supreme Court used corpus linguistics
(and specifically the COCA) in a judicial opinion.60 In State v. Rasabout, the
Utah Supreme Court had to determine whether the phrase “discharge of a
firearm” constituted firing one bullet only or included firing one sequence
of several bullets.61 The defendant, Andy Rasabout, had fired twelve shots
53. 562 U.S. 397 (2011).
54. AT&T, 562 U.S. at 399–400. The case arose out of a FOIA request for correspon-
dence that the FCC had on file from an earlier investigation of AT&T. Id. at 400. The FCC
withheld some of the requested information under FOIA Exemption 7(C), which protects
“‘records or information’ . . . that ‘could reasonably be expected to constitute an unwarranted
invasion of personal privacy.’” Id. at 401 (quoting 5 U.S.C. §552(b)(7)(C) (2006)).
55. See Brief for the Project on Government Oversight et al. as Amici Curiae Supporting
Petitioners at 13–20,AT&T, 562 U.S. 397 (No. 09-1279), 2010 WL 5069527, at *13–20 [here-
inafter POGO Amicus Brief] (concluding that only humans could have “personal privacy” in
the ordinary sense of the phrase).
56. See supra notes 34–35 and accompanying text.
57. POGO Amicus Brief, supra note 55, at 16 (searching the COCA; the TIME Corpus of
American English, a 100 million-word corpus of texts taken from Time magazine; and the
Corpus of Historical American English).
58. Id. at 16–20.
59. Transcript of Oral Argument at 37, AT&T, 562 U.S. 397 (No. 09-1279) (“JUSTICE
GINSBURG: Mr. Klineberg, you have read the brief of the Project on Government Oversight,
where they give dozens and dozens of examples to show that, overwhelmingly, ‘personal’ is
used to describe an individual, not an artificial being.”).
60. State v. Rasabout, 356 P.3d 1258, 1281–82 (Utah 2015) (Lee, J., concurring).
61. Id. at 1262 (majority opinion).
310 Michigan Law Review [Vol.116:303
during a drive-by shooting.62 He was charged with twelve felony counts of
“unlawful discharge of a firearm”—one charge for each bullet.63 On appeal,
Rasabout argued that the phrase “discharge of a firearm” ordinarily means
one shooting sequence, regardless of how many bullets were fired.64 Justice
Lee searched the COCA to locate all the instances where the word “dis-
charge” appeared within five words of either “firearm,” “firearms,” “gun,” or
“weapon.”65 His search returned eighty-six instances.66 And the returns over-
whelmingly suggested that “discharge of a firearm” refers to the firing of a
single bullet.67 In fact, he found only one instance that unambiguously sup-
ported Rasabout’s argument.68 Therefore, Justice Lee concluded that “dis-
charge of a firearm” ordinarily means firing of only one shot.69
Justice Lee’s colleagues did not embrace his use of the COCA. The ma-
jority stated that it refused to follow his approach because the parties did not
brief it and because it was sua sponte scientific research with no scientific
review.70 The majority then wrote that no judge would be able to analyze the
COCA reliably because most judges are generalists and do not have the “sci-
entific expertise” to use the COCA.71 The Rasabout majority also thought
that permitting the use of the COCA would force parties to hire linguistics
experts, which would “[i]mpos[e] such a significant financial burden on so
many of the litigants coming through the doors of our courts [that it] would
be tantamount to locking those doors for all but the most affluent.”72
Chief Justice Durrant concurred in part, but he took a more conciliatory
tone with regard to Justice Lee’s corpus-linguistics analysis.73 The chief jus-
tice wrote that, although corpus linguistics could be a great aid to statutory
interpretation, the parties—not the court—should conduct the analysis be-
cause then the adversaries could challenge one another’s database, method-
ology, and conclusion.74 The Utah Supreme Court’s differing views raised a
number of questions about the use of corpus linguistics for statutory inter-
pretation, especially by judges sua sponte.
62. Id. at 1260.
63. See id. at 1261.
64. Id. at 1264.
65. Id. at 1281–82 (Lee, J., concurring).
66. Id. But five of the instances were dismissed as duplicates. Id. at 1282 n.30.
67. Id. at 1282.
68. See id.
69. Id.
70. Id. at 1264–65 (majority opinion).
71. Id. at 1265 (“Indeed, we are aware of almost no one sitting on the bench or practic-
ing law in this state who has the scientific expertise required to reliably conduct the research
Justice Lee requires.”).
72. Id.
73. Id. at 1269 (Durant, C.J., concurring) (“I applaud Justice Lee for his thoughtful ex-
ploration of corpus linguistics as a potential additional tool for our statutory interpretation
tool box.”).
74. Id. at 1270.
November2017] Corpus Linguistics: Misfire or More Ammo? 311
B. The Michigan Supreme Court’s Use of the COCA
In the spring of 2016, the Michigan Supreme Court became the first
state supreme court to use the COCA in a majority opinion when it decided
People v. Harris.75 The dissent also used the COCA but executed a different
search method and ultimately disagreed with the majority’s analysis.76 This
Section reviews these two opinions. Section I.B.1 discusses the facts of the
case. Section I.B.2 examines the Harris majority’s COCA analysis. And Sec-
tion I.B.3 examines the Harris dissent’s COCA analysis.
1. Factual Background
Harris arose out of an alleged assault at a Detroit gas station.77 Dajuan
Hodges-Lamar was sitting in his parked car at the gas station when Detroit
Police Officer Hughes approached him.78 After Hughes asked Hodges-Lamar
some questions, Hughes suddenly began beating him, while Hughes’s fellow
officers, Harris and Little, watched.79 After the attack, the Detroit Police De-
partment’s Office of the Chief Investigator opened an internal investigation
that required all three officers (Hughes, Harris, and Little) either to testify at
a Garrity hearing80 or potentially face termination.81 At the hearing, the in-
vestigators asked about the altercation, and all three officers denied using
any more force than was necessary.82 The Detroit Police Department’s Inter-
nal Affairs Section later obtained the gas station’s video-surveillance foot-
age,83 which showed the officers had made false statements.84 As a result, the
State charged all three officers with obstruction of justice.85
75. Smith, supra note 47.
76. See People v. Harris, 885 N.W.2d 832, 850 n.14 (Mich. 2016) (Markman, J., concur-
ring in part and dissenting in part).
77. Id. at 834 (majority opinion).
78. Id.
79. Id.
80. Id. A Garrity hearing is named for the Supreme Court’s decision in Garrity v. New
Jersey, 385 U.S. 493 (1967). See People v. Brown, 755 N.W.2d 664, 683 (Mich. Ct. App. 2008)
(“Essentially, a Garrity hearing allows the interviewee to answer questions with the knowledge
that any statements elicited therein will not be used against him in criminal proceedings.”).
81. Harris, 885 N.W.2d at 834 (stating that the officers received an advice-of-rights form
warning the officers that if they refused to answer questions they would be subject to depart-
mental charges, potentially including dismissal from the police force).
82. Id. at 835.
83. Plaintiff-Appellee’s Amended Brief on Appeal at 5, Harris, 885 N.W.2d 832 (Nos.
149872, 149873 & 150042), 2015 WL 9874034, at *5.
84. Harris, 885 N.W.2d at 835. The video showed Hughes “striking Hodges-Lamar with
an open hand in the throat, punching him again, pushing him to the ground, picking him up
by the collar several times, slamming him onto the car, and pushing him back toward Harris
and Little.” Id. at 835 n.4; see also WXYZ-TV Detroit Channel 7, DPD Beating Caught on Tape,
YouTube (June 30, 2011), https://www.youtube.com/watch?v=AZSoihW83k4 [https://perma.
cc/2C35-WXGZ].
85. Harris, 885 N.W.2d at 835.